* The HONORABLE RODNEY W. SIPPEL, United States District Judge

for the Eastern District of Missouri, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3505 No. 97-3626

__________ Excel Corporation, * * Appellant/Cross-Appellee, * * v. * Appeal from the United States * District Court for the Southern Kristine Bosley, * District of Iowa, Southern Division * Appellee/Cross-Appellant. *

____________ Submitted: November 18, 1998 Filed: January 19, 1999

___________ Before BOWMAN, Chief Judge, LOKEN, Circuit Judge, and SIPPEL, District Judge. * SIPPEL, District Judge.
Kristine Bosley was an Excel Corporation (Excel) employee from July, 1990 unti l Excel fired her on May 16, 1994. She fi led suit in federal district court alleging that her exhusband Rock Johnson ( Johnson), also an Excel employee, had harassed her while she was at work, that the harassment created a hostile work environment, and that Excel discharged her in violation of Title VII, 42U.S.C. § 2000e-2(a)(1) and the Iowa Civil Rights Act, Iowa Code Chapter 216 (ICRA). Bosley’s claims were tried to a jury.The Honorable Celeste F. Bremer, Chief Magistrate Judge, United States Distric t 1 Court for the Southern District of Iowa, Southern Division. 2 The jury ret urned a verdict for Bosley on her claim for hostile work environmen t sexual harassment and awarded Bosley back pay. The jury advised against an award of front pay. The jury returned a verdict in favor of Exc el on Bosley’s claim for disparate treatment sexual harassment. Following the trial, the district court denied Bosley’s request for front 1 pay. On appeal, we affirm.
I. The facts of this case, as they were presented to the jury, are dis cussed at length in the dist rict court’s Ruling on Post-Trial Motions, and on Application for Attorney’s Fees an d Expenses, see Bosley v. Excel Co rporation , Civil No. 4-96-CV-20267 (S.D. Iowa Aug. 22, 1997), and we recount only those facts relevant to the determination of this case. Bosley be gan working at Excel, a meat packing plant, in July 1990. Bosley wa s married to Johnson at that time. Johnson was also employed at Excel. Bosley separ ated from Johnson in 1993. Both continued to work at Excel. At trial, Bosley introduced testim ony and other evidence that Johnson subjected her to sexual harassment during confrontations a t work. There was also evidence that Bosley reported this harassment to Excel’s management, but that management personnel did little to investigate or end the harassment. Bosley was a line worker on the kill floor at Excel. Her position was such that she was not allowed to leave her work station, even to use the restroom , without permission from a supervisor. Johnson was a “floater” at the plant. He worked at different workstations in the plant for absent employees. He circulated regularly on the kill floor where Bosle y worked.3

The record is replete with evidence of the hara ssment suffered by Bosley. At various times at the workplace, i n the presence of other co-workers, Johnson called Bosley “bitch”, “slut” or “whore”. Johnson also threatened to kill Bosley’s friend, now husba nd, Jeff Bosley. Bosley repeatedly reported the unwelcome harassment to the manageme nt at Excel. She also reported fear of Johnson’s temper. Excel’s first action was to tell both Bosley and Johnson to keep their dispute s at home. Later, following screaming matches on the kill floor, Bos ley and Johnson were separated but neither was sanctioned. Johnson continued to haras s Bosley even throwing meat and animal organs at her. This was a violation of work rules. Beginning on May 4, 1994, Bosley took personal time off from work due to the stress of the harassment and other personal problems. She returned to work o n May 9, 1994 to find Johnson once again, near her work station on the kill floor. Johnson continued hi s harassment calling her na

mes such as “fucking bitch.” Bosley asked the floor supervisor to relieve her temporarily from her work station. The supervisor refused, despite knowledge of the harassment and Johnson’s proximity to Bosley. About fifteen minutes later, Bosley again requested permission to leave her work station. The supervisor denied her reques t again. Johnso n continued to harass Bosley. In frustration, Bosley pushed Johnson once in the chest and told him to get out of the area and go back tohis assignment. At that point, the supervisor intervened and escorted Johnson from the area. After Bosley pushed Johnson, she was sent to a supervisor’s office. Physical contact be tween employees is a work rule violation. Bosley was placed under “indefinit e suspension.” Bosley was upset. As she was leaving the work floor, Bosley saw Johnson in another room. Bosley believed that Johnson was not being sanctioned as strong ly as she was, if at all. Bosley pushed past a supervisor to e nter the room to talk to Johnson. This incident was reported as Bosley having struck a supervisor.4

The events of May 9, 1994 formed the basis for the decision to terminate Bosley on May 16, 1994. Excel did not sanction Johnson for any of the events of May 9, 1994. Bosley’s claims that Excel fired her in violation of Titl e VII were tried to a jury. Both Bosley’s claim of hostile work environment sexual harassment and disparate treatment based on sex were submitted. The jury returned a verdict for Bosley on her claim of hostile work environment sexual harassment an d granted her back pay damages. The jury recommended against a front pay award. The jury found for Excel on Bosley’s claim of dispara te treatment. In its Rulingon Post-Trial Motions, the district court denied Bosley’s request for front pay damages.
II.
On appeal Excel argues that the jury erred in awarding back pay to Bosley. Exce l furth er argues that the district erroneously held that evidence of sexual relations betwee n Johnson and Bosley was inadmissible. Bosley cross-appeals claiming that the district court’s denial of front pay damages was in error. A. Back Pay Issue On appeal Excel argues that the facts in th e record do not support the jury’s award of back pa y to Bosley. Excel argues that because it had a legitimate reason for firing Bosley, the evidence did not support a finding that sexual harassment caused Bosley’s termination. Excel argues that without such a finding, back pay could not be awarded. Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(m), an e mployee is entitled to relief if he or she proves that impermissible discrimination was a “motivating factor” in the employment decision, “even though other factors also motivated”5

the employer’s decision. Pedigo v. P.A.M. Transp., Inc. , 60 F.3d 1300, 130 1 (8th Cir. 1995). The relief may include payments of front and back pay. Doane v. City of Omaha , 115 F.3d 624, 629 (8th Cir. 1997). It is not necessary that the actual termination deci sion be motivated by discriminatory animus. Ke intzy v. McDonnell Douglas , 990 F.2d 1051, 1060 (8th Cir. 1993). If th e decision making process is tainted by discrimination, the claimant is entitled to relief. Id
. Wh en an employee is fired because he acted to defend himself against harassment, whic h supervisors failed to take reasonabl e measures to prevent or correct, the termination process cannot be said to be free from discrimination. DeGrace v. Rumbsfeld , 614 F.2d 7 96, 804 (1st Cir. 1980); see also Keintzy v. McDonnell Douglas , 9 90 F.2d at 1060. This is so even if the ultimate decision maker was moved purel y by a legitimate concern about personnel matters. Id
. The issue on appeal is whether the record contains sufficient evidence for a rational fa ct finder to conclude that, absent the hostile work environment, Bosley would not hav e been f ired. On appeal, discriminatory intent and discrimination are issues that may b e determined from all of the facts in the case. Kientzy v. McDonnellDouglas Corp. , 990 F.2d at 1060. Further, we consider the evidence in the light most favorable to Bosley as th e prevailing party. Finley v. Empiregas, Inc. of Potosi , 975 F.2d 467, 474 (8th Cir. 1992).
In applying this standard of review, we hold that there was sufficient evidence t o support the award of back pay. The jury found that Bosley had been subjected to a hostile work environment at Excel. Excel does not appeal this finding. The following evidence was ad mittedrelevant to the causation of Bosley’s termination. Bosley and other co-worker s complained repeatedly of the harassment Bosley was suffering. Excel chose not to act to stop the harassment because Bosley and Johnson had been married. On the day of the firing,6

Bos ley asked twice to be relieved of her position in an effort to get away from th e harass ment. Twice the supervisor refused the request. Finally, Bosley testified that sh e shoved Johnson out of the way. As a result of this action Bosley was fired.
T h e evidence was sufficient for a reasonable fact-finder to find that the termination process was tainted by sex discrimination even if the actual decision to terminate was not. This is the same conclusion expressly reached by thedistrict court in its analysis of the front pay issue discussed below. We confirm the district court’s analysis. The award of back pay was proper. Accordingly, we affirm the district court’s award of back pay. B. Front Pay Issue
A distric t court’s decision regarding the award of front pay is reviewed for abuse of discretion. Curtis v. E lectronics & Space Corp. , 113 F.3d 1498, 1504 (8th Cir. 1997). The dis trict court may not reject findings made by the jury, but it does have the discretion t o consider all the circumstances involved in determining appropriate equitable relief. Id
. The issue of fr ont pay is not an issue for the jury to decide, rather it is a form o f equitable reli ef which must be determined by the district court after considering all aspects of the case. Newhouse v. McCormick & C o. , 110 F3d 635, 641 (8th Cir. 1997). Front pay may be granted in lieu of reinstatement in situations where reinstatement would b e impracticable or impossible. Id
. A T itle VII claimant seeking either back pay or front pay damages has a duty t o mitigate those damages by exercising reasonable diligence to locate other suitabl e employment and maintain a suitab le job once it is located. Equal Employment Opportunity Commission v. Delight Wholesale Co. , 973 F.2d 664, 670 (8th Cir. 1992). The burden of7

proving that the em

ployee did not make reasonable efforts is on the defendant. Di Salvo v. Chamber of Commerce , 568 F.2d 593, 598 (8th Cir.1978). The record shows that the trial court heard evidence of Bosley’s emp loyment after she was terminated by Excel. This evidence showed that Bosley had taken part-time employment as a gas station clerk. B osley then worked for a telemarketing company that paid her $2.90 less per hour than her job at Excel. There was no evidence of a fur ther job search by Bosley. The jury found that Bosley was entitled to back pay. The district court, however, in making its front pay determination, noted that it had been three years since Excel had terminate d Bosley. The district court found that the evidence did not show that Bosley had mitigated her damages for purposes of the front pay decision. The district court did not award front pay.
Bosle y first argues that the district court incorrectly placed the burden of showin g mitigation on her. However, the district court, in its discussion of the front pay issue, did not hold that t he burden was on Bosley to show she had mitigated her damages. Rather, th e district court held that the evid ence in the record indicated a failure to mitigate for purposes of front pay. The district court explained that if Bosley had offered evidence of her jo b search, it might have shown that she had m itigated her damages. But, that evidence was not in t he record. The evidence actually in the record before the court could not support a finding of mi tigation. The district court did not abuse it discretion in making thi s determination. Bosley next argues that the denial of front pay is inconsistent with an award of back pay by the jury. As noted, while the district court i s not free to reject the jury’s findings, the dete rmination of front pay should be made after considering all of the circumstance s regarding the claimant’s employment situation that are relevant to the isue of front pay. The circumstances informing the back pay issue are not necessarily the same circumstances that8

inform the front pay issue. The nu mber of suitable jobs which a plaintiff could be expected to locate would likely increase as the temporal length of the job search increa ses. The district court specifically pointed to th e amount of time that had elapsed since Bosley’s termination in its discussion of the front pay issue. The jury’s conclusion that during the period of the back pay award, Bosley had mitigated her damages is not inconsistent with the dist rict court’s determination that at the time of the front pay determination, suff icient time had passed, such that Bosley’s failure to find comparable employment was due to a failure to mitigate.
The distri ct court’s denial of front pay damages was not an abuse of discretion
. Accordingly, we affirm the district court’s action. C. Evidence of Sexual Activity Excel argues th at the district court erroneously ruled that evidence of alleged sexual relations between Bosley and her ex-husband outside the work place was inadmissible.
This co urt reviews a district court’s ruling on admissibility of evidence for abuse of disc retion. General Electric Co. v. Joiner , 118 S.Ct. 512, 517 (1997). It is very much a matter of discretion with th e court whether to receive or exclude evidence and the appellate court will not reverse in such a case, unless the ruling is manifestly erron eous. Id . This same standard applies to proffered expert testimony. Id
. At trial Excel sought, pursuant to Federal Rule of Evidence 412, to admit evidence of sexual relations between Bosley and her ex-husband. These sexual relations were alleged to have taken place outside of the work place dur ing the same time period as the complained of sexual harassment. Excel made an offer of proof of this evidence. During the offer of9

proof, Johnson testified that heand Bosley had sexual relations on several occasions during the time of the alleged harassment. Excel also sought to offer the testimony of Dr. Patrick Barrett, a clinical psychologist who Johnson saw twice during the time of the alleged sexual encounters. Dr. Barret t testified that he met once with Johnson al one and the second time with Johnson and Bosley. Bosley was in attendance at Dr. Bar rett’s request. Barrett testified that during the visit with Johnson alone, Johnson told h im Bosley was giving him ambiguous signals and that Bosley occa sionally slept with him. Dr. Barrett testified that Bosley may have acknowledge d sending Johnson mixed s ignals. Dr. Barrett could not recall whether Bosley acknowledged sleeping with Johnson. The district court ruled that the testimony of Johnson and Dr. Barrett was inadmissible under Federal Rule of Evidence 412.
Rule 412 allows admission of evidence of an alleged victim’s past sexual behavior or al leged sexual predisposition in sex offense cases. Specifically Rule 412(b)(2) allows for the admission of such evidence in a civil case if it is otherwise admissible under the Rules of Evidence and its probative value substantially outwei ghs the danger of harm to any victim and of unfair prejudice to any p arty. We note that the applicability of Rule 412 to evidence proferr edin a lawsuit brought pursuant to Title VII has not been decided by this Court
. However, it is not necessaryfor us to make that determination here. Rule 412 was the only basis for admissibility asserted by Excel. Admissibility of th e evidence under any other rule is not bef

ore the Court. Assuming, without deciding, that Rule 412 is applicable to th e evidence proffered in this case, we c annot find that the district court abused its discretion in refusing to admit into the record, evidence of alleged sexual relations between Bosley and Johnson outside the workplace.10

The evidence in the record does not support a finding that th e district court manifestly erred in r efusing to admit the offered testimony. The alleged sexual activity took plac e outside the workplace. There was no allegation that Excel was aware of it or that it informed Excel’s actions regarding the sexual harassme nt about which Bosley complained. This was the issue be fore the jury not Bosley’s actions outside the workplace. Further the danger of harm and unfair prejudice to Bosley was great. The distric t court did not abuse its discretion in refusing to admit the testimony of Johnson and Dr. Barrett. Accordingly, we affirm the actions of the district court.
III. For the reasons above, we affirm the judgment and award of back pay. Loken, Circuit Judge, concurring.
I agree with the court’s decision to affirm, and I concur in its opinion. But for me, there is an additional, troubling aspec t to this case that warrants brief mention -- the parties’ assu mption, reflected in the district court’s instructions to the jury, that the harassment o f Bosley by her spouse was necessarily sexual harassment, so that the resulting hostile work envi ronment, when unremedied by Bosley’s employer, was unlawful under Title VII
. Marria ge in today’s legal environment is invariably between persons of the opposite sex
. When a marital spat spills over to the work place, it may produce misconduct that is no t moti vatedby unlawful sex discrimination, even though that same misconduct betwee n unrelated co-workers of the opposite sex would quite pro perly be the basis for inferring such discrimination. As the court observed in Galloway v. General Motors Corp. , 78 F.3d 1164, 1168 (7th Cir. 1996): The repetition of the term [“sick bitch”] together with the other verbal conduct that is alleged reflected and exacerbated a personal animosi ty arising out of the11

failed r elationship rather than anything to do with a belief by [the mal e harasser], of which there is no evidence, that women do not b elong in the work force or are not entitled to equal treatment with male employees. In this case, the district court instructed the jury it could infer se xual harassment from Rock’s use of “sexually derogatory language” and “discriminatory intimidat ion, ridicule, and insult,” without a cautioning instruction of the kind upheld in Rothenbusch v. Ford Motor Co. , 1995 WL 431012 ( 6th Cir. 1995) (unpublished per curiam): “Personal animosity is not th e equivalent

of sexual harassment and is not proscribed by law.” Excel Corporation did not re quest such a cautioning instruction, did not object to the instruction given, and does no t raise an instruction issue on appeal. But if requested in a case of this type, I believe that this kind of cautioning instruction must be given to ensure that Title VII is not unwittingl y expand edto impose liability on employers for condoning or not remedying offensive co

worker conduct that does not amount to discrimination “because of . . . sex.” 42 U.S.C
. § 2000e-2(a). A true copy. Attest. CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT